JURIST Guest Columnist Amaury Reyes-Torres of Iberoamerican University (UNIBE) in Mexico, discusses Baskin v. Bogan and argues that the opinion presents an alternative approach to the equal protection standard of review for discriminatory acts…

The right to equality or the right to equal protection of the laws is essential in a democratic society. This right has a particular content and it requires a particular standard of review in order to properly assess whether a given act or conduct of the government constitutes an unreasonable differentiated treatment (discrimination) involving an individual or a class. This commentary focuses on the following questions: How should the courts proceed in the assessment of any possible violation to the equal protection clause? Is there a test to rely on as a standard of review?

Latin-American constitutional courts (e.g the Constitutional Court of Colombia and the Constitutional Court of the Dominican Republic), rely on ‘the equality test’ to examine whether a particular treatment is constitutionally permitted. The equality test, as developed by these courts, presents three fundamental components under which a potential discriminatory act or conduct is reviewed:

The determination of whether or not the affected individuals in the situation under analysis are similar;

The analysis of the proportionality, suitability and necessity of the differentiated treatment;

The analysis of the goals to be achieved by the differentiated treatment, the means to achieve them and the relationship between the means and the goals.

However, the test advanced by these courts could be upgraded or at least, semantically speaking, refocused under a new different perspective. In Making Our Democracy Work: A Judge’s View, Justice Stephen Breyer noted, since the constitution is a meant to be workable, a new approach—when it comes to equal protection—is a good way to make it so.

In one of the many decisions favoring the unconstitutionality of same sex marriage bans in the US, as a result of the Windsor Effect, there is one particular judicial opinion that must be given our attention for the purposes of the inquiry. Even though it is not a supreme court opinion, its relevance should not be dismissed lightly. This is because of how it deals, as a matter of practical legal reason, with the right to equal protection of the laws and how it should be properly applied as a standard of review regarding discriminatory acts. Furthermore, it gives us an interesting focus on how an issue related to discrimination should be approached, in particular when it comes to a protected class.

In Baskin v. Bogan, Judge Posner, writing for a panel of the US Court of Appeals for the Seventh Circuit, posed four questions that in a practical manner help address the issue of whether a concrete policy is discriminatory, and therefore unconstitutional, under the equal protection clause. To properly engage in this exercise, we must ask ourselves the following:

Does the challenged practice involve discrimination, rooted in a history of prejudice, against some identifiable group of persons, resulting in unequal treatment harmful to them?

Is the unequal treatment based on some immutable or at least tenacious characteristic of the people discriminated against? The characteristic must be one that is not relevant to a person’s ability to participate in society.

Does the discrimination, even if based on an immutable characteristic, nevertheless confer an important offsetting benefit on society as a whole?

Though it does confer an offsetting benefit, is the discriminatory policy over-inclusive because the benefit it confers on society could be achieved in a way less harmful to the discriminated-against group, or under-inclusive because the government’s purported rationale for the policy implies that it should equally apply to other groups as well?

These questions are nothing but a semantic way to inquire whether or not a policy is discriminating against a particular class. Through these questions, writing for the majority, Posner tried to summarize the equal protection doctrine in a more accessible way. Each question deals with a specific part of the equal protection assessment. According to Posner:

Our questions go to the heart of equal protection doctrine. Questions 1 and 2 are consistent with the various formulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court’s approach in heightened-scrutiny cases: To succeed, the defender of the challenged action must show at least that the classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.

On Posner’s view, this ‘semantic’ view of the equal protection standard places emphasis on the government aims or interests and to what extent the law is best suited or tailored to achieve the compelling interest. It excludes from the test the cost and benefits analysis approach by focusing only on how ‘fit’ the policy is to achieve the identified aim: whether or not the policy might do more harm than required to attain the goals or whether the exclusion of similar groups is indicative of arbitrariness regarding the group subject to policy.

As we see, the semantic approach in Posner’s opinion dares to take a closer look at the concrete circumstances surrounding the individuals who claimed they had been discriminated against. Also, it places emphasis on the political and social stance, historically speaking, of a class or group, which helps provide a comprehensive view of the situation under review. Furthermore, when it comes to a protected or a suspect class, it helps identify the elements to establish the presumption of discrimination that shifts the burden of proof on the state or the third party claiming that no discrimination has occurred. To have a constitution that is meant to work is about asking ourselves the proper questions regarding a particular constitutional clause to fully understand it as meant by the constitution.

How useful could these questions be to determine when a particular policy is discriminatory under the equality test? As I said, the equality test is a standard created by the Constitutional Court of Colombia that was later adopted by the Constitutional Court of the Dominican Republic. However, the components of the equality test, as we saw, are not so accessible (in a practical way) and do not offer a set of concrete questions to assess whether or not a given questioned conduct is permissible under the constitution.

This does not mean that these courts should give up their equality test, but it means that a new approach such as the ‘semantic approach’ developed by the Seventh Circuit in Baskin, could be a very useful tool to properly apply the equality test, particularly when it comes to components 2 and 3 of the test. The semantic approach is a suitable complement to the equality test and it helps us study and decide cases from a pragmatic approach, by asking ourselves the important and pragmatic questions.

Even when the certiorari petition was recently denied (PDF), Posner’s opinion in Baskin offers a good starting point to develop a pragmatic approach on the equality test. I personally believe that this fascinating approach is useful to refocus the way courts see the equal protection standard of review against discriminatory acts.

Amaury Reyes-Torres is a Constitutional Law Lecturer at Iberoamerican University (UNIBE) in Mexico City, Mexico.

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